Many v. United States

RHONDA USES MANY, ADMINISTRATEX OF THE ESTATES OF BRITTANY BUFFALO, DECEASED, AND WACO BUFFALO, DECEASED, Plaintiff,v.UNITED STATES OF AMERICA, Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
DISMISS.

ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

Plaintiff
Rhonda Uses Many is the Administratrix of the Estate of
Brittany Buffalo and Waco Buffalo. Uses Many has sued the
United States under the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 1346(b), 2671-2680, alleging that the
negligence of a Cheyenne River Sioux Tribe (CRST) Police
Department employee during a high-speed vehicle pursuit
caused the deaths of Brittany and Waco. Doc. 1. The United
States filed an answer denying liability, Doc. 7, and then
filed a motion to dismiss for lack of jurisdiction and
failure to state a claim under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), or alternatively, a motion
for summary judgment under Rule 56(c), Doc. 16. Uses Many
opposed this motion, and both parties submitted additional
materials outside the pleadings. Docs. 18-19, 22-25. For the
reasons explained below, this Court grants the United
States' motion to dismiss.

I.
Facts

Around
1:00 a.m. on the morning of July 11, 2013, Brittany was
driving a vehicle on South Dakota Highway 212 on the Cheyenne
River Sioux Indian Reservation. Doc. 1 at ¶6; Doc. 18 at
¶2; Doc. 24 at ¶2. Also in the vehicle were
Shon'do Talks and Waco, Brittany's brother. Doc. 1 at
¶ 6. Meanwhile, CRST police officer Terry Long Mandan
was in his patrol vehicle at the junction of Highways 63 and
212, facing west. Doc. 18 at ¶2; Doc. 24 at ¶2.
Brittany made a wide turn onto Highway 63, almost traveling
into the west ditch, before swerving towards the centerline
and then onto the west white fog line. Doc. 1 at ¶ 7;
Doc. 18 at ¶2; Doc. 24 at ¶2. Officer Long Mandan
observed the wide turn and swerving, and then followed the
vehicle for at, least a quarter mile, before activing his
overhead flashers to stop the vehicle for careless driving.
Doc. 18 at ¶ 3; Doc. 24 at ¶ 3. Officer Long Mandan
did not know at the time who was in the vehicle, or have any
knowledge of crimes committed other than careless
driving.[1] Doc. 23 at ¶ 3; Doc. 19-1 at 3.

Brittany
did not stop the vehicle, and instead sped up, prompting
Officer Long Mandan to turn on his lights and siren and to
begin pursuing the vehicle. Doc. 1 at ¶ 7; Doc. 18 at
¶¶ 4-5; Doc. 24 at ¶¶ 4-5. Talks later
told Officer Long Mandan that he and Waco had told Brittany
to stop for the police vehicle, but that she kept going. Doc.
18 at.¶ 20; Doc. 24 at ¶ 20. Officer Long Mandan
made contact with dispatch during the pursuit, but there was
no supervisor on duty. Doc. 18 at ¶¶ 5, 7; Doc. 24
at ¶¶ 5, 7.

The
pursuit lasted for eleven miles, with the vehicles reaching
speeds well above 100 miles per hour. Doc. 1 at ¶ 8;
Doc. 18 at ¶¶ 6, 11; Doc. 24 at ¶¶ 6, 11.
During the pursuit, Brittany's vehicle traveled in the
opposite lane at times. Doc. 18 at ¶ 6; Doc. 24 at
¶ 6. The pursuit met one vehicle on Highway 63, which
pulled over, allowing the vehicles to pass. Doc. 18 at ¶
9; Doc. 24 at ¶ 9. During the pursuit, Officer Long
Mandan's vehicle never made contact with Brittany's
vehicle, staying 50 to 100 yards away. Doc. 18 at ¶ 10;
Doc. 24 at ¶ 10. As Brittany's vehicle was traveling
south, in the direction of off-reservation.Stanley County,
Officer Long Mandan asked dispatch to contact higher command,
either Lieutenant Chad Olson or Chief of Police Burton In The
Woods, but neither were on duty. Doc. 18 at ¶ 12; Doc.
24 at ¶ 12. Officer Long Mandan advised dispatch to have
an ambulance on standby before the pursuit came to an end.
Doc. 19-1 at 6; Doc. 23 at ¶ 6.

Around
1:18 a.m., Brittany's vehicle traveled towards the west
ditch near a curve in the road, overcorrected, swerved
towards the east ditch, rolled over and down a hill to the
east of the highway, and stopped on its roof. Doc. 1 at
¶8; Doc. 18 at ¶¶ 13-14; Doc. 24 at
¶¶ 13-14.. Officer Long Mandan requested an
ambulance at the scene, and after approaching helped Talks
out of the front passenger window. Doc. 18 at ¶¶
15-17; Doc. 24 at ¶¶ 15-17. Officer Long Mandan
requested extrication equipment from dispatch after seeing
Waco partially ejected and pinned underneath the vehicle.
Doc. 18. at ¶ 18; Doc. 24 at ¶ 18. Officer Long
Mandan then located Brittany lying motionless approximately
100 feet from the vehicle. Doc. 18 at ¶ 19; Doc. 24 at
¶ 19. Ambulances transported Brittany, Waco, and Talks
to the Indian Health Service Hospital in Eagle Butte, and
later autopsy examinations revealed that Brittany and Waco
died from blunt force trauma injuries. Doc. 1 at ¶ 8;
Doc. 18 at ¶¶ 21-22; Doc. 24 at ¶¶ 21-22.
A toxicology report indicated that Brittany had alcohol in
her system at the time of death. Doc. 18 at ¶¶
23-24; Doc. 24 at ¶¶ 23-24. An accident
reconstruction done by the South -Dakota Highway Patrol
surmised that Brittany was driving the vehicle at 131 miles
per hour when the rollover occurred. Doc. 18 at ¶ 25;
Doc. 24 at ¶ 25.

On
March 18, 2014, Uses Many filed an administrative tort claim,
seeking $1, 500, 000 in damages; Uses Main was given notice
of the claim's denial on September 17, 2014. Doc. 1 at
¶ 13. On March 11, 2015, Uses Many filed this suit
against the United States, seeking the same amount plus costs
for the deaths of Brittany and Waco, who were 26 and 23 years
of age at the time of their deaths. Doc. 1. Uses Many alleges
that the negligence of Officer Long Mandan in the course of
the high speed pursuit by "[f]ailing to use proper
protocol to engage a vehicle stop, " "[f]ailure to
follow proper protocol regarding vehicle pursuit, "
"[f]ailure to follow instruction to end high speed
pursuit, " "[f]ailure to recognize dangers of high
speed pursuit, " and other facts caused the deaths of
Brittany and Waco. Doc. 1 at ¶ 9.

After
filing, an answer, Doc. 7, the United States filed a motion
to dismiss under Rule 12(b)(1) or 12(b)(6), and a motion for
summary judgment under Rule 56(c) in the alternative. Doc.
16. The United States argues that Officer Long Mandan's
actions during the pursuit were the product of discretion,
which is an exception to tortuous conduct for which the
United States can be liable for under the FTCA. Doc. 17 at 6.
The United States also argues that Uses Many failed to state
a claim upon which relief can be granted because she did not
show the existence of any duty that Officer Long Mandan held
towards Brittany and Waco under South Dakota state negligence
law. Doc. 17 at 13. Finally, in the alternative, the United
States argues that Officer Long Mandan was not negligent, and
did not violate any applicable duty of care, entitling it to
summary judgment. Doc. 17 at 14. Along with this motion, the
United States filed a statement of undisputed facts, and
several supporting documents. Docs. 18-19, 19-1-19-6. Uses
Many opposed dismissal, arguing that CRST policy requires
supervisory oversight during pursuits, and because no
supervisor was available, the pursuit should not have
occurred. See Doc. 22. Uses Many also responded to the United
States' statement of undisputed facts, filed her own
statement of undisputed material facts, and included several
supporting documents. Docs. 22, 22-1-22-3, 23, 24. The United
States' reply focuses on the lack of an analogous private
right of action under state law for Officer Long Mandan's
allegedly negligent conduct. Doc. 25.

II.
Motion to Dismiss Standard

The
United States asserts lack of federal court subject matter
jurisdiction and failure to state a claim for which relief
can be granted, moving to dismiss under Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. Questions
of the existence of federal jurisdiction under Rule 12(b)(1)
must be decided first, and are for the court to decide alone,
regardless of whether the issues involve questions of law or
fact. Osborn v. United States, 918 F.2d 724, 729
(8th Cir. 1990). A Rule 12(b)(1) challenge to subject matter
jurisdiction can be either facial or factual in nature.
Id. at 729 n.6. A facial challenge to federal
jurisdiction limits the court to considering the allegations
in the plaintiffs complaint, and it must view the allegations
in the light most favorable to the plaintiffs. See
Stalley v. Catholic Health Initiatives, 509 F.3d
517, 521 (8th Cir. 2007). A factual challenge to federal
jurisdiction gives the court the freedom "to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case, " and it need not view the evidence in
the light most favorable to the non-moving party. See
Osborn, 918 F.2d at 729 n.6, 730 (quoting Mortensen
v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,
891 (3d Cir. 1977)).

The
United States has submitted evidence outside of the initial
pleadings in support of its Rule 12(b)(1) motion, mounting a
factual challenge to this Court's subject matter
jurisdiction by contending that Officer Long Mandan was
acting in a discretionary function. Doc. 17 at 3, 5-8; Docs
19, 19-1-19-6. This Court can thus "look outside the
pleadings in order to determine whether subject matter
jurisdiction exists." Green Acres Enters., Inc. v.
United States, 418 F.3d 852, 856 (8th Cir. 2005);
see also Lightning Fire v. United States, No.
3:15-CV-03015-RAL, 2017 WL 1944105, at *2-3 (D.S.D. May 9,
2017). The decision to grant the United States' motion to
dismiss can be based on: "(1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed
facts plus the court's resolution of disputed
facts." Johnson v. United States, 534 F.3d 958,
962 (8th Cir. 2008) (quoting Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981)). By bringing suit and
seeking to establish jurisdiction, Uses Many retains the
burden of showing that this Court has jurisdiction. See
Great Rivers Habitat Alliance v. FEMA. 615 F.3d 985,
988 (8th Cir. 2010); Riley v. United States. 486
F.3d 1030, 1032 (8th Cir. 2007).

III.
Discussion

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Under
the FTCA, the United States is "liable to the same
extent&#39; as a private party for certain torts of federal
employees acting within the scope of their employment."
United States v. Orleans, 425 U.S. 807, 813 (1976).
The FTCA thus waives, in a limited fashion, the sovereign
&#39; immunity of the United States. See Mader v. United
States. 654 F.3d 794, 797 (8th Cir. 2011). The FTCA
waives the United States' sovereign immunity for
"personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would b6 liable to the claimant in accordance with
the law of the place where the act or omission occurred,
" 28 U.S.C. § 1346(b)(1). The ...

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